ELRC946-21/22FS

ARBITRATION AWARD


IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC946-21/22FS

In the matter between

Mahlomola Hans Rustoph Applicant

and

Department of Education Free State First Respondent
Motheogae Mathope Second Respondent


Applicant’s representative:
Mr Ruan Krammer – Legal Representative

First Respondent’s representative:
Mr Thulo Tsunke – Assistant Director Labour Relations
Second Respondent’s representative: Mr Moshoeshoe Moshoeshoe – Legal Representative





DETAILS OF THE HEARING AND REPRESENTATION

[1] This is an award in the arbitration between Mr Mahlomola Hans Rustoph, the Applicant, and Department of Education Free State, the First Respondent “(also referred to as ‘employer’), and Mr Motheogae Mathope, the Second Respondent.

[2] The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5)(iv) of the Labour Relations Act, 1995 as amended (“the Act”) and this award is issued in terms of section 138 (7) of the Act.

[3] The arbitration hearing took place online, on 3 February 2023, 18 April 2023 the matter was postponed due to the First Respondent’s representative sickness and non-attendance of the Second Respondent on grounds that he had not received the set down notice. It was part heard on 14 June 2023, 7 August 2023, 13 October 2023, and 13 November 2023.

[4] The Applicant was present and represented by Mr Ruan Krammer (Krammer), his legal representative. The First Respondent was represented by Mr Thulo Tsunke (Tsunke), its Assistant Director Labour Relations. The Second Respondent was present and represented by Mr Moshoeshoe Moshoeshoe (Moshoeshoe), his legal representative.

[5] A pre-arbitration conference had been conducted by the parties, minute of which are part of the arbitration record.

[6] The matter was finalised on the 13 November 2023 and the parties agreed to file the closing arguments and a request was later filed by the Respondents to file closing arguments by 22 November 2023, same received have been considered in the analysis below.

BACKGROUND TO THE DISPUTE

[7] The Applicant referred an unfair labour practice related to promotion dispute to the ELRC.

[8] Per pre-arbitration conference minutes item 3, the Applicant was employed by the First Respondent and worked at Tjhebelopele Primary School from 2009. He acted as the Principal of Tjhebelopele Primary School from November 2017 until January 2022.

[9] The position for a PL4 permanent principal post at Tjhebelopele Primary School was advertised.

[10] The Applicant was shortlisted but not successful. The Second Respondent was appointed into the Principal post.

[11] The Applicant challenged the appointment. Per pre-arbitration conference minutes item 4, issues in dispute are:
 Whether the most suitable candidate was appointed;
 Whether the second respondent was the most suitable candidate;
 Whether the process of appointing and filling the vacant post was followed in accordance with the collective agreement 1 of 2019;
 Whether the interview committee was in compliance with the collective agreement 1 of 2019;
 Whether the interview process was consistent and in accordance with the Collective agreement 1 of 2019;
 Whether the complaints made by the applicant were handled in the appropriate manner as stipulated in the Collective agreement 1 of 2019.

ISSUE TO BE DECIDED

[12] I am called upon to determine whether the First Respondent committed an unfair labour practice related to promotion by not appointing the Applicant for the Principal post.

[13] If I find that the First Respondent committed an unfair labour practice related to promotion, I must determine the appropriate relief otherwise the referral will be dismissed.

SURVEY OF THE EVIDENCE AND ARGUMENT

[14] Mr Krammer led the Applicant’s case and called the Applicant and a second witness to testify. He submitted a bundle of documents marked A1-67.

[15] Mr Tsunke led the First Respondent’s case. He called one witnesses and submitted a bundle of documents marked R1-34, initial submission numbering was not in order and resubmitted with corrected numbering.

[16] Mr Moshoeshoe on behalf of the Second Respondent indicated he would not lead any evidence and aligned the Second Respondent’s case with the First Respondent’s case.
Below is the summary of the evidence led.

APPLICANT’S EVIDENCE
Witness 1- Mr Mahlomola Hans Rustoph (the Applicant)
[17] The Applicant testified that he met the minimum requirements of the principal post in terms of his work experience and education background. His qualification included a Senior certificate BAED, BED, Honours level in education, Bachelor of Social Sciences, a number of short courses and was also registered with South African Council of Educators (SACE).

[18] He was automatically shortlisted for the principal post because he acted for more than 12 months, per the collective agreement. He explained the general post filling process and that shortlisting was done by SGB and circuit manager, Mr Lethepa (Lethepa), who was the resource person, and two union members as observers.

[19] He did not know if the Second Respondent was shortlisted or not.

[20] He highlighted discrepancies relating to shortlisting process captured in complaints about Lethepa, seeking his recusal, per A33, 25 February 2021 SGB letter to Mr Moloi, R34, SADTU letter of complaint, which he said he saw for the first time at arbitration.

[21] The concerns raised per letters, read into the record, related to Lethepa dictating to chairperson of the interviewing panel to run the process, emphasised that he wanted strong candidates..somebody to cure the school, that he will be working with that person, taken to insinuate that he did not want to work with the Applicant, inconsistent approach in doing reference checks leading to argument with chairperson and panel members, said final scoring will be done by him and the secretary and seen by the Applicant next day giving the secretary R100.00 and having conversation with educator component in his car after shortlisting; instructing chairperson on 25 February 2021 to put process on hold without stating reasons; and candidates not being informed of interviews.

[22] Also, A46 letter of concern to Department of Education MEC and HOD, written by ex SGB who was supposed to hold interviews stating amongst other things, at para 11,12, that there were allegations against certain SGB members who were involved in HOD and Deputy principal recommendation process and that Lethepa met with certain SGB members privately to discuss principal post. Also, that in July 2023 Mr Motshelamadi was requesting to intervene in the matter. He called Lethepa who confirmed the interviews will be on 7 August 2021 without formal letter issued to panel.

[23] Per A47 point 15-18, after Lethepa sent an email to the acting principal with same allegation as those made after HOD and Deputy principal recommendation process, there was no assistance from the district office for the SGB to recommend the suitable candidate.

[24] Mr Tshabalala HR came and instructed the SGB and said if they don’t cooperate the post will be held by an independent panel, and he will come after two weeks with the decision, but he never came back instead the candidates were called and the interviews were done without the knowledge of SGB.

[25] He denied knowledge of the letter submitted to Mr Motshelamadi, the Chief Education per A47 point 15-17. He confirmed receipt of A44 letter from Mr Lethepa (Read into the record) allegations about SGB being divided and school stopping interviews scheduled for 7 August 2021 pending investigations and for district director to map way forward.

[26] Mokhali did not sign A43 letter of SGB concerns dated 11 August 2023 addressed to Chief Director and to Mr Motshelamadi, where SGB indicated they were united and wanted to proceed with process. His relationship with her was well until he declined her requests to bring her dance club to the school for the learners to pay and for her boyfriend to teach computer to learners for monetary benefit as SGB should not use school to pursue personal interests.

[27] Per A51, A52 WhatsApp messages from Mokhali (read into the record) saying she could have been able to influence his non-appointment by making allegations about to the district office.

[28] Interviews were conducted by an independent panel because Lethepa said the SGB was divided, and he sent Tshabalala to investigate.

[29] The First Respondent did not comply with the Collective Agreement Guideline for Advertising and Filling of Vacancies of Educators posts at Institutions, “procedures that would ensure that the recommendation is not obtained through undue influence on the members of the SGB”, A60 point 4.7, in its appointment of the Second Respondent because SGB members influenced the Circuit Manger to take the interview panel to an independent panel.

[30] Lethepa was influenced by some SGB members from meeting of 1 August who met with him outside the meeting.

[31] There was non-compliance with, A61 para 4.14 of the collective agreement stating, “… where the SGB is not able to discharge this function as expected in terms of SASA, 84 04 1996; the Superintendent General may after consultation with the School Governing Body appoint an independent interviewing committee”. According to him if the SGB told the Department they cannot proceed with the interviews the District Circuit Manager was supposed to consult with the District Superintendent General who would consult with the SGB and District Superintendent General would appoint an independent interviewing panel.

[32] The interviews were supposed to take place at the school and only changed after Lethepa meeting with the three (3) SGB members.

[33] The secretary, Qayiya, was given R100.00 as a bribe by Lethepa.

[34] The independent interviewing panel was appointed in the district office without the knowledge of the Superintendent General.

[35] The process of appointment of the school principal was not fair.

[36] The Superintendent General /HOD has authority to appoint.

[37] The SGB letters of complaint were not handled per A 63 point 7 complaints handling procedure stating, “Any complaint raised by a representative of a trade union or any other party to the shortlisting and or interviewing process must be dealt with according to PAM Chapter G and /or any other agreed upon resolution”.

Cross - examination
[38] During cross examination he testified that based on the CV of the Second Respondent he would have shortlisted him. He was more qualified than himself.

[39] If the Superintendent had consulted with the SGB the interviews would have still proceeded at the school level. Tshabalala’s position was Deputy Director, the Superintendent General was supposed to consult the SGB.

[40] The SGB treasurer and Mokhali, chairperson, did not see eye to eye as they were not on the same page in the SGB meeting of 1 August 2021. Lethepa wrote a letter about deep divisions A44-45 without observation first because there is bound to be differences in meetings. He was not in the meeting but relied on reports from the side meeting. The behaviour of the DGB treasurer and Mokhali continued after the separate meetings. He agreed that because of the divisions there had to be an independent interviewing panel.

[41] It was three (3) people who did not want the SGB to hold the interviews. Despite the three (3) people who did not like him, he would have been fine with the interviews proceeding at SGB school level even if he got low scores.

[42] During the interviews he did not know there was no letter of Superintendent appointing the independent panel and found out after requesting the documents through his legal representative. He never asked about the independent interviewing panel appointment letter.

[43] The Superintendent has powers to delegate in terms of SASA and other legislation to senior officials. However, still maintaining the independent panel constitution was improper.

[44] Two unions were present in the interviews, and he never raised a complaint through his union SADTU because if he did the complaint would have been handled by the same people who had asked him if he had problems at the school and said if so, he would be moved to another school. He only raised a complaint after the appointment of the principal.

Re-Examination
[45] If the Superintendent had consulted with the SGB the interviews would have still proceeded at the school level. There is no document showing the Superintendent / HOD appointed the panel.'

Witness 2- Ms Thulisile Mohlakane (Mohlakane)
[46] She was an SGB member at Tjhebelopele Primary School during 2018,19 20 and second term 2021, but did not finish the term, exited in December 2021, and still assisted in 2022.

[47] She was involved in the principal point appointment and had not seen the application of the Second Respondent which means he never applied.
[48] R60 4.6 / 4.7 4.74 re undue influence -they sent a letter to district office for intervention for process to continue – no response was received by them as SGB or interview panel.

[49] If the complaints were handled there would have been no case the interview panel was trained and competent to proceed with the process as they had gone through some processes for other appointments and they would have made their recommendation to circuit office.

[50] R61 4.14.1 appointment of independent interviewing committee was done without consultation with SGB.

[51] The SGB found out that there was appointment of interviewing panel through rumours from the Deputy Principal.

[52] The Department did not follow process and disregarded the collective agreement/Guidelines.

[53] Their powers were removed without consultation.

[54] Per R33 SGB letter complaining about Lethepa’s behaviour, saying he wanted a strong person because the person would be working with him when Mr Tshangane was conducting training meaning that the Applicant was not a strong person.

[55] When Lethepa called for the Applicant’s reference checks his energy was low and questions were different and not consistent with when he was calling for the other candidates and asked questions that would make the person not give a positive answer. Could not think of the specific questions he asked.

[56] He was dictating and said he would do the final scoring and he was seen giving the secretary R100.00.

[57] A letter was directed to District Director, Mr Moloi, asking for Lethepa’s recusal and received no acknowledgement.

[58] Mokhali was against the Applicant and wanted him away from the school.

[59] R51 -52, messages she received from Ms Mokhali show that she was there to interrupt school process and remove the Applicant from his position. In SGB meetings she threatened reporting them to highest authorities and making sure the school is shut down. Her disruption affected the Applicant and the whole process.

[60] The SGB was not divided except for Mokhali.

[61] She was not aware of SADTU complaint A34. The district office response A36 was only sent to SADTU, the panel members were not called by the district office to determine SADTU complaint.

[62] A46, SGB grievance letter about appointment of permanent principals and about their complaints not being attended. They never got to interview stage, stopped at reference checking stage,

Cross - examination
[63] During cross examination she testified that she could not remember candidate Moleleki, and candidates’ names from the long list but that Motheogane was not on the list.

[64] Regarding the Applicant not meeting 50 threshold per R31-36, the questions and answers were not provided, also no motivation for candidates 3 and 4 only for 1 and 2.

[65] She saw the Second Respondent’s CV at ELRC for the first time and agreed he has the requisite skills, qualifications, and experience more than the Applicant. She did not agree that he must be a principal because she was not part of the panel that assessed him.

[66] She could not remember if Ms Moleleki was on the list as she could not remember candidates’ names from the long list but knew the Second Respondent was not on the list.

[67] By saying ‘they want a strong candidate’ that did not refer to the Applicant because she heard that the Department of Education is biased and want to appoint their own candidates.

[68] When she joined the SGB the previous principal was moved because there were fights between the SGB, Principal and educators, and the deputy principals, including Applicant acted as principal.
[69] She was not aware of about 1.6 million lawsuit pertaining to Nashua contract signed during her tenure also promise of sponsorship for colleague’s soccer club.

FIRST RESPONDENT’S CASE
Witness: Mr Motshelamadi Kagiso Bahurutshe (Motshelamadi)
[70] He testified that he was a Chief Education Specialist and knew the Applicant as Deputy Principal/ Acting Principal at Tjhebelopele Primary School.

[71] They interviewed and scored four candidates. The best candidate was the Second Respondent.

[72] They were shocked by the Applicant’s performance since he was acting in the position and automatically shortlisted. He did not even become best candidate or second best his score was below 40.

[73] No applications were added or removed also on verification with long list.

[74] Anyone who could do that would be risking losing their pensions and salary.

[75] The SGB can request to be assisted with an independent panel or if there is a dispute emanating from the process through an arbitration process it can be decided that a panel should be appointed.

[76] The independent panel at Tjhebelopele Primary School was appointed by the HOD.

[77] He was part of the process with Magadla, Mafoyane and Khobe, there were two union representatitives, and he was the chairperson of the panel.

[78] He spoke to the Applicant about getting a job at another school after interviews because from experience he had seen that the acting principal normally does not work well with the new principal. Also, after seeing his performance at the interviews that he was marked less than 50 all fair scoring panelists had given him low scores based on his performance. It was advice that he was not forced to take.

Cross-Examination
[79] He testified that he was seeing A33 letter for the first time as it was addressed to the director and maybe that is the reason the matter was referred to the independent panel.

[80] Explained the process of appointment of the panel.

[81] He said it was impossible that there was no response to the letter because for the panel to be appointed the process would have been followed.

[82] Complaints were attended to, per letter dated 12/05/2021 R36 response to SADTU.

[83] The dispute prevention committee has to make recommendation for independent panel appointment.

[84] A36 does not state that an independent panel had to be appointed but he disputes that there was no process followed to appoint the independent panel because he was appointed in writing.

[85] Agrees it would not be procedural if he was not appointed in writing but disputed that there was no appointment letter by the HOD.

[86] As a starting point the unions would ask for that letter and it was presented. He would not appoint himself to just run an independent panel.

[87] Agreed that if the panel was not appointed properly its decision would be null and void.

[88] He was copied on A43 letter indicating the panel wanted to proceed without Lethepa, that if Lethepa was recused SGB could have finalised appointment, but the letter was not signed by all SGB members.

[89] The reports about undue influence by Mokhali and her threats to report to himself or Moloi would have been unfair if she had influence. She did not have influence on the independent panel and the messages on A51-52 had no bearing on the process that was followed.

[90] The application of the Second Respondent was on the long list, and he does not know about Mohlakane being denied a copy, but the Department had the onus to produce the long list if requested.

[91] He was shocked by the Applicant’s performance because he had been acting for long time and yet could not respond to basic principal duties questions.

[92] Candidates’ questions and answers have to be minuted.

[93] Motivation was only done for candidates recommended for appointment, the Applicant and last candidate were not appointable hence there was no motivation.

[94] The Respondent should have submitted interview minutes if they were asked it was its responsibility.

[95] Panel appointment process was procedural and fair. Per R61 4.14.1, the superintendent general – at school level Principal represents superintendent general, if the principal is involved in the matter it goes to circuit manager or higher levels.

Re-Examination - only significant concessions
[96] If the panel appointment letter had been requested, it would have been provided.

[97] The Second Respondent had applied and confirmed by verification.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[98] Section 186(2)(a) of the LRA stipulates that unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.

[99] This is a dispute relating to promotion and therefore, my determination will focus on whether there was unfair conduct by the First Respondent against the Applicant concerning his non-appointment to the Tjhebelopele Primary School Principal post.

[100] The Applicant had to demonstrate through evidence and argument that the First Respondent’s conduct in not appointing him to the principal position was unfair. The Applicant also needed to show that such unfairness by the First Respondent falls squarely within the ambit of section186 (2) (a) of the LRA as unfair labour practice relating to promotion.

[101] The Applicant should prove at least three things, namely:
(a) That the dispute concerns conduct by the First Respondent relating to promotion of the Applicant.
(b) That there was unfair conduct on the part of the First Respondent during the promotion process.
(c) That the unfair conduct constituted an unfair labour practice and that he is entitled to the relief he seeks.

[102] In assessing whether this dispute relates to promotion for the purposes of section 186(2)(a) of the LRA, in Malatji v City of Tshwane Metropolitan Municipality and others, the Court held that it is trite that promotion for the purposes of section 186(2)(a) involves a move by an existing Employee to a higher rank or position that carries greater status, responsibility, and authority.

[103] The Applicant is currently employed by the First Respondent as a deputy principal.

[104] The post of School Principal at Level P4 which the Applicant was automatically shortlisted and interviewed for, had he been successful, carries greater status, high remuneration, responsibility, high-level job security, and authority than the Deputy Principal post offers.

[105] Given the above, I am satisfied that the dispute is a promotion dispute for the purposes of section 186(2)(a) of the LRA.

[106] Regarding whether the conduct by the First Respondent complained of exists and if found to exist whether it was unfair.

[107] In Pamplin v Western Cape Education Department the Court emphasized that whilst in unfair labour practice disputes relating to promotion the onus is on the Employee to demonstrate that the failure to promote was unfair, the Employer, is in the same token, obliged to defend challenges on the substantive and procedural fairness if it wishes to avoid a negative outcome.

[108] According to Pamplin, there is an obligation on the employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of such evidence, it would be irrational and unreasonable to conclude that the employer acted fairly, regardless of where the onus lies.

[109] In determining the matter, I consider the issues in dispute in point 11 above.

[110] My assessment is that it is not disputed that the Applicant met the job minimum requirements. His testimony that he did not know if the Second Respondent was shortlisted or not was not advanced but corroborated by the Applicant’s second witness testimony that the Second Respondent name was not on the list, he never applied, it was her first time seeing his application presented by the First Respondent.

[111] I found the Applicant’s second witness’ testimony in this regard not so reliable considering by her own concession during cross examination she testified that she could not remember candidates’ names from the long list. In the light of the presented application, I would accept the First Respondent’s version that the Second Respondent had applied for the vacancy he got interviewed for. Based on the evidence before me, no negative inference could be drawn from the Second Respondent not testifying in this regard.

[112] Both the Applicant and his second witness agreed that the Second Respondent had the requisite skills, qualifications, and experience more than the Applicant, as read into the record also had a Master’s degree.

[113] It was not disputed that the Second Respondent was assessed by the independent interviewing panel, as the First Respondent’s witness testified that he chaired the independent interviewing panel which interviewed four candidates, ratings and final scores and motivation for appointable candidates read into the record. That the Second Respondent was the best candidate with highest score of 59,25 and Applicant third at 40.25, collaborated by documentary evidence in form of scoring sheets and motivation.

[114] I note the argument about minutes of the meeting but in the light of the evidence presented not being disproved by the Applicant. I also note in the pre-arbitration conference minutes it was indicated that minutes were amongst the documents that the Respondent was going to provide to the Applicant for the arbitration. The parties exchanged the documents, and the documentary evidence was admitted but the issue of minutes was never raised and persisted with. The Applicant’s Second witness testimony that the Second Respondent could not be the best candidate because she was not on the panel that assessed him was successfully refuted.

[115] Hence, I find on a balance of probabilities that the Applicant did not show that he was the best candidate and that the Second Respondent’s appointment was not the most well-suited candidate for appointment.

[116] My assessment is that the explanation of the general process of selection, shortlisting and interviews until appointment was not in dispute. Also, that an interview panel and resource person was appointed with two unions represented as observers in the process for the particular principal post filling, which was advertised accordingly, and that the process was stopped after shortlisting and reference checks were done.

[117] It is further not disputed that there were requests to the district office made by the SGB members for recusal of the resource person, Lethepa. Applicant and his second witness testified that these were not attended to. On rebuttal the First Respondent presented A36 response to SADTU request for resource person recusal for, in the main, similar reasons raised in SGB letter. Response was that after investigation the finding was that there was no prejudice on process due to the alleged conduct of resource person based on speculations and that process should continue.

[118] I note the Applicants’ contention that the response was to SADTU but not all SGB panel members and that they were not involved in the investigation. On the other hand, the Applicant did testify that he was represented by SADTU in the process.

[119] Nevertheless, although it was a reasonable expectation to get a response, since the response was to the same process participants and in the main about the same issues raised if it was not given, I could not find on a balance of probabilities that showed unfair conduct relating to promotion. Same applies to follow-up correspondence from former SGB to the MEC about the delay and following up on complaints.

[120] The main contention in this dispute is the appointment of the independent interview panel which conducted the interviews and appointed the Second Respondent. It was not in dispute that the collective agreement provided for, “… where the SGB is not able to discharge this function as expected in terms of SASA, 84 04 1996; the Superintendent General may after consultation with the School Governing Body appoint an independent interviewing committee”.

[121] The Applicant testified that there were three people who were against him and did not want the interviews to proceed. The Applicant’s second witness testimony was that only the chairperson of the SGB, Mokhali, was disruptive and hindering the process because he was fighting the Applicant and did not want him in the school. Also threatening to take matters to authorities in circuit office. Messages of Mokhali, to SGB treasurer stating how she could have been able to influence the Applicant’s non-appointment by making allegations about him which she reported to the district office were presented in support of the Applicant’s case.

[122] It is not in dispute that there was a letter Lethepa sent to the Applicant, as acting school principal, stating that due to divisions in the SGB the interview process was stopped to seek the district director ‘s intervention. I note the argument that Lethepa could not have made such an assessment because he was not in the SGB meeting. Also, that Mokhali was not part of the interview panel. On the other side though the letter of SGB members about their readiness to conclude the interviews was not signed by all the SGB members, which on a balance of probabilities does not show their united view about continuation of the process.

[123] Hence the Applicant did not show on a balance of probabilities that there were no divisions in the SGB which triggered Lethepa’s request for intervention of the district director.

[124] Regarding the appointment of the independent interviewing panel the First Respondent’s First witness had no knowledge of letters not addressed to himself but on cross examination he testified that for the panel to be appointed the process would have been followed prior his appointment which was made in writing. Also, that the unions in the process as a starting point would have asked for that letter and it was presented. He would not appoint himself to just run an independent panel.

[125] He refuted the claims that Mokhali had influence on the independent panel and said her messages and threats to take matters to himself or Moloi had no bearing on the process.

[126] Regarding the Applicant’s testimony that the Superintendent was supposed to come in person and not supposed to send Tshabalala, deputy director, to consult with SGB after Lethepa’s allegations of divisions before appointing the independent interview panel, on a balance of probabilities shows there was consultation, and that the SGB powers were not removed without consultation.

[127] In the light of the Applicant’s concession on cross examination that the Superintendent could delegate his powers to senior officials and that Tshabalala was a deputy director. Also, the Respondent’s testimony that representation of superintendent general at school level is Principal, if principal involved in the matter it goes to circuit manager or higher levels.

[128] I find on a balance of probabilities, that due process was followed, and the decision was not capricious or arbitrary.

[129] The Applicant’s testimony that the independent panel was appointed at district level without the knowledge of the Superintendent, in the light of the above and his own testimony that the Superintendent/HOD made the appointment is not unquestionable.

[130] Besides the complaints addressed above I note there were no other complaints lodged by the Applicant as he testified that he never raised complaints in the interviews.

[131] Regarding his reason for not lodging complaints because the same people he would have reported to had asked him if he wanted to move to another school. The Respondent’s witness testimony was that he had asked same as advice, after seeing his performance in the interviews and knowing from history that it was normal that there would be disputes following appointment of a new person where someone else was acting for long.

[132] Considering the Applicant’s second witness testimony that the previous principal was moved because there were fights between the SGB, Principal and educators, and the deputy principals, including Applicant acted as principal, it appeared the environment had the propensity for such.

[133] Hence, I could not find on a balance of probabilities that the Applicant showed there was unfair conduct relating to handling of his complaints in the appropriate manner.

[134] In City of Cape Town v SAMWU obo Sylvester and others (C1148/2010) [2012] ZALCCT 40; (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) (handed down on 7 September 2012) it was held, with reference to the Arries judgment (supra), that the overall test is one of fairness. In deciding whether the Employer acted fairly in failing or refusing to promote the Employee it is relevant to consider the following:
a) whether the failure or refusal to promote was caused by unacceptable, irrelevant, or invidious consideration on the part of the Employer; or
b) whether the Employer’s decision was arbitrary, or capricious, or unfair; or
c) whether the Employer failed to apply its mind to the promotion of the Employee; or
d) whether the Employer’s decision not to promote was motivated by bad faith;
e) whether the Employer’s decision not to promote was discriminatory;
f) whether there were insubstantial reasons for the Employer’s decision not to promote;
g) whether the Employer’s decision not to promote was based upon a wrong principle; and
h) whether the Employer’s decision not to promote was taken in a biased manner.

[135] I also note that in Provincial Administration Western Cape (Department of Health & Social Services) v Bikwana & others (2002) 23 ILJ 761 (LC) paragraph (29)-(32) the Labour Court held that: There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination is present.

[136] I have considered all the factors above and based on the evidence before me, I could not find that the Applicant discharged the onus to prove that he was subjected to unfair labour practice related to promotion as contemplated in terms of s186 (2) (a) of the LRA.

I therefore make the following award:

AWARD

[137] The First Respondent, Department of Education Free State, did not commit an unfair labour practice relating to promotion as contemplated in terms of s186 (2) (a) of the LRA by not appointing the Applicant, Mr Mahlomola Hans Rustoph, to the position of Principal.

[138] The referral application is dismissed.

Thus, done and signed at Johannesburg on 06 December 2023.

ELRC PANELIST
LUSANDA MYOLI